Ontario Bolsters Child Performer Rights, but excludes fashion models

On February 5, 2015, the Ontario Government rolled out new legislation that specifically targets Child Performer’s employment rights in the entertainment industry.

CanadaFashionLaw has followed a movement that has been happening south of the border in terms of protecting child talent, and is delighted that Ontario is also taking the necessary precautions to protect talented youth.  However, it appears that the Ontario government did not specifically consider fashion models, much to CanadaFashionLaw‘s disappointment.

Abiding by this legislation is mandatory and employers cannot “contract out” of the provisions.  Below is a summary of the salient provisions of the legislation:

  • Who does it pertain to? The act pertains to child performers under the age of 18, who perform work or supply services as a performer (including a background performer) in the entertainment industry for monetary compensation.  However, the act stipulates that an employer cannot employ a baby less than 15 days old for recorded entertainment or a child that is younger than 2.5 years old for live entertainment.
  • What is the legislation applied to? The legislation is limited to the live and recorded entertainment industry.
  • What is included as part of the entertainment industry?  The scope of what qualifies as part of the entertainment industry is restricted to performers in: a) live performing arts in theatre, dance, music, opera or circus or b) visual or audio visual recorded entertainment that is played in cinemas, the internet, radio, television broadcast, or a recorded device, such as a DVD.
  • An obligation of full and continued disclosure. Prior to employing a child performer, the prospective employer must have a meeting with the child’s parent/guardian providing full disclosure about the gig, including a description of the role the child will play, the location and hours of the rehearsals and performances, any health and/or safety hazards the child may be exposed to, the precautions the prospective employer will take to safe guard against those hazards, any special skills required of the child and any special effects that the child may be exposed to.  The child has the option of being present at this meeting.  Should any of these items be changed, the employer must provide the parent/guardian with written notice.  The changes cannot be implemented without the parent/guardian’s consent.
  • Written employment contracts are mandatory.  Although fantastic that this is included, CanadaFashionLaw doesn’t understand why anyone would provide services without a written contract.
  • Supervision.  Any child performer under 16 years ago must be accompanied by an authorized chaperone to/from the workplace.  The parent/guardian must provide its authorization in writing.  However, if the travel is overnight, the parent/guardian must accompany the child at all times.  The employer is responsible for the overnight travel costs.  A parent/guardian or authorized chaperone must be present during the child’s performance.
  • Tutoring.  The employer must set aside time in the work schedule for the child to receive tutoring.
  • Creation of trust fund.  If the child earns more than $2,000 on a project, 25% of the earnings must be set up in a trust fund, which the child can access when he/she reaches 18.  However, if the child is part of a trade union or professional association, and the union/association provides for a trust fund deposit, this provision does not apply.
  • Maximum hours of work and overtime.  The legislation sets the maximum hours and overtime a child can work in the day, which varies according to age and whether the child is performing in live or recorded entertainment.
  • Free hours.  The legislation also stipulates that the child must have a specific number of minimum hours free during the work day and also during the week.
  • Enforcement.  The act refers back to specific provisions in the Employment Standards Act with respect to enforcement.

Interestingly, (but perhaps not surprisingly), the fashion industry does not easily tie in with this legislation.  It appears to be geared towards Ontario’s golden child entertainment industries: film, television, radio and music, with a few additional industries, such as dance, opera, theatre and, even the circus.  Fashion is not itemized as an industry.  As such, it is difficult to make the case that child models will be protected by this legislation.  At best, child models may be protected under this legislation if they are included in a recorded commercial that is replayed in cinemas, on the internet or on TV.  Frustratingly, this is another example of how the Ontario government has shortchanged the fashion industry (perhaps to the employers’ delight).

Politics, Lobbying and Fashion: A Fabulous Combination?

Last week, CanadaFashionLaw advised its readers that the Ontario Government is conducting open consultations with respect to setting up a Culture Strategy for Ontario.  Fashion is not included as part of culture.  One of CanadaFashionLaw’s mantras is: don’t ask, don’t get.  With respect to the consultation, our position is that if you don’t like the status quo, change it!  (And if you want our help to change the status quo, let us know!).  Ultimately, industry has to inform the government of the realistic ‘boots on the ground’ business impact that laws have.

There’s always an interesting dance between industry and the government.  Oftentimes industries flourish when it has government support.  When industries don’t have that support, industry players will band together to lobby the government to make laws more favourable.  Statistics on whether the Canadian fashion industry is very involved in lobbying the government for progressive change is sparse.  Sometimes this is on purpose as corporations are hesitant to demonstrate their overt influence on the government.

Examples in the US of where the fashion industry has actively lobbied government to change laws include attempts to change the US Copyright Act to include specific protection for fashion designs and to build support for the Trans-Pacific Partnership.  If you’re wondering why the fashion industry would have a vested interest in the TPP – the TPP will eliminate tariffs of textiles and apparel.  (Of course, this could put a major dent in the ‘Made in America’ movement).  In 2015 alone, the US fashion industry spent big on this issue.  For example, the US National Retail Federation spent $3 million on lobbying the US government, Target spent $770,00, JC Penny spent $410,000 and the Gap spent $160,000.  That is some significant investment!

It will be interesting to see if the Canadian fashion industry will band together to get the Ontario government to consider fashion to be part of culture.

If you’re interested in chatting about this more, feel free to reach out to CanadaFashionLaw.

Ontario Government Setting up Culture Strategy – fashion not included (yet)

As a fashion lawyer, I understand the importance of the interplay between government support and the legal framework in order for industry to flourish.  The fashion industry is no exception.

An opportunity has presented itself that I felt important to bring to your attention.

The Ontario provincial government is creating a Culture Strategy for Ontario.  This is a first for Ontario, which is fantastic.  However, there is an important omission: the fashion industry is not included as part of ‘culture’ or the ‘arts’.  Creating the Culture Strategy for Ontario is in its infancy and the government wants your input.  As such, the Province will be conducting a series of consultations to ensure that the Culture Strategy of Ontario encompasses and impacts what is important to Ontarians.

There is a lot at stake if fashion continues to be excluded as part of ‘culture’ and ‘arts’.  In 2014-2015, the Ministry of Tourism, Culture and Sport’s total spending on culture was $800 million.  Now is our opportunity to ensure that fashion is included in the budget.  The fashion industry is a significant contributor to Ontario’s culture and economy; but, unfortunately it is up to the fashion industry to prove that it deserves to get a piece of the pie.

If you would like to get more information, visit the Culture Strategy’s website at Ontario.ca/culturetalks.

If you would like to have your voice heard, you can:

  1. send your comments in writing to culturetalks@ontario.ca.  The comments must be submitted by December 7, 2015; and/or
  2. attend a public town hall meeting, which will held at various cities throughout Ontario.  The Toronto town hall meeting will be held on November 12 from 7pm to 9:30pm at Currie Hall at the National Ballet School.  (For other cities, please go to Ontario.ca/culturetalks for details).

Join the conversation.